On Christmas Eve we blogged about a pelvic mesh case that had the veritable “mixed bag” of rulings. A bad bit in that bag was the court’s ruling that the statute of limitations had not been triggered until a doctor performed a revision operation and told the plaintiff the operation was necessary to address issues with the mesh. To our eyes, that seemed to be a rather robotic approach.

The case we will look at today, Clabo v. Johnson & Johnson Health Care Sys., Inc., 2020 U.S. App. LEXIS 39041 (6th Cir. Dec. 14, 2020), comes courtesy of the Sixth Circuit and offers a much more sensible theory as to how and when to cut off tardy lawsuits. The plaintiff filed her lawsuit seven years after her first mesh revision surgery. The defendant moved for summary judgment, arguing that the case was barred by Tennessee’s statute of repose, which prohibits product liability claims brought more than six years after the date of the injury that gave rise to the suit. The district court granted summary judgment to the defendant, and denied the plaintiff’s request to amend the complaint.

On appeal to the Sixth Circuit, the issue was when the plaintiff’s injury occurred. If the injury occurred when the plaintiff needed her first surgery to deal with erosion of the mesh in 2006, the plaintiff would lose. If the injury did not occur until a later surgery in 2011, or until 2012, when a “physician-friend” told the plaintiff that the mesh product was the likely cause of the plaintiff’s persistent pain and suffering, then the plaintiff’s lawsuit could go forward.

The Tennessee statute does not define the term “injury.” The Sixth Circuit looked to the purpose of the statute of repose, saw that there was nothing ambiguous about “injury,” and decided to follow the ordinary and plain meaning. Black’s Law Dictionary says that “injury” is a harm done in breach of a duty, and, in the context of a product liability case, suggests that the date of injury is when an individual was first physically affected by by a defect in a product.

The plaintiff was held to the admissions made in her fact sheet, in which she stated that she was first injured in 2006, when she first felt exposed mesh and when she told her doctor she wanted the mesh removed. There was no reason to choose the later date of 2011 as the injury. The plaintiff did not really know any more with respect to the 2011 mesh surgery than the one in 2006; the plaintiff preferred 2011 merely because it would save her case. The 2012 date of injury was premised on the advice of the doctor-friend blaming the mesh, but that amounts to grafting a discovery rule onto the statute of repose — which Tennessee courts have declined to do. Consequently, the Sixth Circuit affirmed summary judgment on the basis of the statute of repose. The Sixth Circuit also held that the district court correctly denied the motion to amend as futile.